The main legal point established in the judgment is the importance of clear evidence and intention in determining the appropriate section of the Indian Penal Code for conviction.

JUDGMENT

Bibek Chaudhuri, J. - This is an appeal against the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, 5th Court at Malda in Sessions Trial No. 32 of 2017 arising out of Sessions Case No. 51 of 2017 convicting the appellant under Sections 325 and 307 of the Indian Penal Code. Thereafter the learned Trial Judge handed down punishment of rigorous imprisonment for five years with fine and default clauses for the offence punishable under Section 325 of the Indian Penal Code and rigorous imprisonment for seven years with fine and default clauses for committing offence punishable under Section 307 of the Indian Penal Code.

2. Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence, the convict has preferred the instant appeal.

3. Learned advocate for the appellant has assailed the impugned judgment and order on the ground that the Court below did not consider delay in lodging the F.I.R. The incident took place on 17th November, 2012 and the F.I.R. was lodged on 19th November, 2012. There is no explanation of delay in lodging the F.I.R. but the de facto complainant.

4. Secondly, it is urged by the learned counsel for the appellant that in the vicinity and closest proximity of the place of occurrence the house of Hararam Das, Khitish Pramanik, Akhil Das, Arun Das and a temple are situated. The prosecution failed to examine any of the above-named nearest neighbours to the place of occurrence during trial of the case.

5. Practically, the Investigating Officer did not even examine the said witnesses. According to the learned advocate for the appellant they are the best natural witnesses of the alleged incident but they are not examined.

6. Thirdly, it is submitted by the learned advocate for the appellant that the de facto complainant tried to exonerate the case by naming five persons in the F.I.R. From the evidence on record it is ascertained that all the witnesses who allegedly came to the place of occurrence after the incident and the victim also, the complicity of appellant Sukumar Das is present. In view of such exaggeration in the F.I.R., the narration of the alleged incident cannot be expected as true narration of the incident.

7. Furthermore, the manner of the incident as stated by P.W.5/Sakti Das who is the victim of this case is at variance with the story made out in the F.I.R. According to the injured (P.W.5) he had a mini tubewell at the relevant point of time and he used to supply irrigation water in the landed property of Sukumar Das. Sukumar Das told him to come to his house on the date of occurrence at about 11 p.m. to take money for supplying water in his agricultural field. The de facto complainant, however, stated in his evidence that P.W. 5 was called by the accused person to the house of Sukumar Das and he was assaulted there with the help of iron rod.

8. It is submitted by the learned advocate for the appellant that in a criminal case time of occurrence is absolutely important. He draws my attention to the evidence of P.W.3, the de facto complainant and P.W.5, injured person. Both of them stated that the alleged incident took place on 17th November, 2012 at about 11 p.m. P.W.1, P.W.2 and P.W.4 claimed themselves to be the local witnesses who reached in the place of occurrence immediately after the incident. They saw the victim lying with a bleeding injury on his head in the house of the appellant. According to P.W.2 the incident took place at about 12 at midnight. The medical officer (P.W.7), on the other hand, recorded the time when the victim received injury as on 17th November, 2012 at 9 p.m. He medically examined the patient on 18th November, 2012 at about 4:10 p.m.

9. Therefore, there is big discrepancy as to the specific time when the incident took place. Furthermore, the patient party stated the name of the appellant in the injury report and the medical officer only recorded that the victim was injured by 'lathi' in the releva